Former Nairobi governor Evans Kidero has suffered a setback after the Court of Appeal dismissed a case in which he sought to block the Ethics and Anti-Corruption Commission (EACC) from investigating his bank accounts.
Court of Appeal Judges Daniel Musinga, Asike Makhandia and Sankale ole Kantai said yesterday that the questions Dr Kidero was raising in the appeal had been answered by the Supreme Court, in a judgment delivered in a separate case in February 2019.
In the matter, the anti-graft body sought information against Dr Kidero during his tenure as the managing director of Mumias Sugar Company between 2003 and 2012 and during his term as Nairobi governor, including a memorandum of understanding signed between the city government and a Chinese firm.
It was Dr Kidero’s argument that the EACC’s mandate is limited to enforcing the provisions of Chapter Six of the Constitution and does not extend to investigating offences other than those specified in the Constitution. He submitted that the EACC acted outside its mandate in purporting to undertake investigations against him after obtaining warrants to investigate his six bank accounts, in February 2016.
“It will, therefore, be seen that the Supreme Court has answered all the complaints raised by the appellant in the Memorandum of Appeal. The complaints have no merit,” said justices Musinga, Makhandia and Sankale.
The EACC obtained court orders to investigate the account opening documents, statements, cheques, deposit slips, telegraphic money transfers, client instructions, bankers’ books and any other information relating to the bank accounts.
Through lawyer Ochieng Oduol, Dr Kidero submitted that the investigations were done without notice, yet every action or exercise by a State or public officer must of necessity comply with the constitution.
Mr Oduol submitted that in dismissing his case in June 2018, the High Court gave the EACC and any police officer or investigator a freehand to move the court at will and obtain warrants without first utilising other constitutional safeguards for obtaining the said evidence.
EACC through Senior Counsel Fred Ngatia submitted that the warrants were lawfully issued and, in such cases, what is required is a reasonable basis upon which an investigator would seek to investigate a bank account.
The Supreme Court had held that it all depended on what was at stake, the nature of the evidence required and the urgency with which the evidence had to be acquired.
The court further held that EACC did not have to always give prior notice to those it intended to investigate before commencing an investigation.
The anti-graft body alleges that Dr Kidero received millions held in several accounts and acquired properties in Nairobi during his tenure at Mumias and later as the Nairobi County governor.
